Mumford v. State Highway Comm'n, 3573.

• Decision Date: 07 May 1931
• Docket Number: No. 3573.,3573.
• Citation: 35 N.M. 404,1 P.2d 115
• Parties: MUMFORDv.STATE HIGHWAY COMMISSION et al.
• Court: New Mexico Supreme Court

35 N.M. 404

1 P.2d 115

MUMFORD

v.STATE HIGHWAY COMMISSION et al.

No. 3573.

Supreme Court of New Mexico.

May 7, 1931.

Syllabus by the Court.

No written notice of injury to employee occurring in presence and within knowledge of foreman or superintendent is required to establish employers' liability (Laws 1917, c. 83, § 13).

In case of injury to an employee in the presence of and within the knowledge of a foreman or superintendent in charge of the work, no written notice is required in order to establish his liability under the terms of the statute, chapter 83, § 13, Laws 1917.

Injured employee's failure to file timely claim after expiration of period prescribed for employer to pay first installment defeats right to compensation (Laws 1917, c. 83, § 13).

Failure on the part of the employee to file his claim within the time required by the statute defeats his right. Caton v. Gilliland Oil Co. of New Mexico, 33 N. M. 227, 264 P. 946, followed.

Appeal from District Court, Santa Fé County; Holloman, Judge.

Proceeding under the Workmen's Compensation Law by J. B. Mumford, claimant, opposed by the State Highway Commission, employer, and the American Employers' Insurance Company, insurance carrier. Judgment for claimant, and employer and insurance carrier appeal.

Reversed and remanded, with directions.

Injured employee's failure to file timely claim after expiration of period prescribed for employer to pay first installment defeats right to compensation. Laws 1917, c. 83, § 13.

Francis C. Wilson and Thos. H. Dodge, both of Santa Fé, for appellants.

A. M. Edwards, of Santa Fé, for appellee.

PARKER, J.

The plaintiff, appellee, was an employee of the state highway commission, and while in such employment suffered an injury to his left eye, resulting in the loss of the member. The state highway commission carried insurance against accidents to its employees with the American Employers' Insurance Company, which was applicable to the injury of the plaintiff. The injury occurred on March 24, 1928, and within the knowledge of one A. H. Caldwell, construction superintendent of the job where plaintiff was working for the state highway commission. The state highway commission did not pay plaintiff any compensation, no more did the American Employers' Insurance Company, and plaintiff on October 24, 1928, filed his claim for compensation in the district court of Santa Fé county, in which proceeding he was awarded against the state highway commission and the American Employers' Insurance Company, appellant here, compensation in the sum of $900 for the injury to and loss of his left eye.

There is only one question in the case, and that is, as to whether the claim is or is not barred by the statute of limitations, prescribed in section 13 of chapter 83, Session Laws of 1917, which was the law in force at the time of the accident, and which is as follows:

“Sec. 13. The compensation herein provided shall be paid by the employer to any injured workman entitled thereto in monthly installments as nearly equal as possible excepting the first installment which shall be paid not later than thirty-one days after the date of such injury. Any workman claiming to be entitled under this act to compensation from any employer on account of any injury suffered by accident arising out of and in the course of his employment shall give notice in writing of such accident and of such injury to such employer within two weeks after the occurrence thereof, unless prevented by such injury or other causes beyond his control, and, if so prevented, as soon as the same may be reasonably done, and at all events not later than sixty days after such accident; provided, that no such written notice shall be requisite where the employer or any superintendent or foreman or other agent in charge of the work in connection with which such injury occurred had actual knowledge of the occurrence thereof. Except in the case of such workman being...